Opinion
Case No. 02-1173-KI.
June 30, 2004
Michael E. Haglund, Timothy J. Jones, Haglund Kelley Horngren Jones, LLP, Portland, Oregon, Attorneys for Plaintiff.
James S. Smith, David C. Rocker, Davis Wright Tremaine, LLP, Portland, Oregon, Attorneys for Defendant Chevron, U.S.A., Inc.
FINDINGS AND CONCLUSIONS
Plaintiff Elias Androutsakos, through his guardian Stavros Androutsakos, brought an action against the M/V PSARA, Psara Shipping Corporation (together "the Psara defendants"), and Chevron U.S.A., Inc. ("Chevron") arising out of a grievous injury suffered by plaintiff while on board the M/V PSARA and occurring when the ship was docked at Chevron's pier in Portland, Oregon. Plaintiff asserted negligence claims against all defendants and an unseaworthiness claim against the M/V PSARA. In a series of Opinions, the court ruled that this case would proceed against all defendants in this district and that United States law would apply to all claims. Shortly before the trial was set to begin, plaintiff settled his claims with the Psara defendants and the cross claims between the Psara defendants and Chevron were also dismissed. From May 15, 2004, to May 25, 2004, plaintiff and Chevron proceeded to trial before the court for a determination of plaintiff's total damages and Chevron's percentage of liability, if any, for those damages. The case was then re-opened for purposes of taking limited evidence of plaintiff's prior medical expenses, and the court conducted a final hearing on June 28, 2004. The following are my findings of fact and conclusions of law as required by Fed.R.Civ.P. 52.
I. Findings and Conclusions Pertaining to Liability
A. Events Leading up to Plaintiff's Injury
Shortly after 8:00 am on August 24, 2002, the tanker ship M/V PSARA arrived at the Chevron terminal located on the Willamette River in Portland, Oregon. The M/V PSARA was carrying a cargo of Boscan crude oil from Venezuela, which it was seeking to offload at the Willbridge pier at the Chevron terminal.
Three Chevron employees, Richard Gissell, Thomas Trask, and Richard Petersen, were waiting on the dock to receive the M/V PSARA's mooring lines. The three Chevron employees then retrieved the ship's mooring lines and brought them to shore using smaller heaving lines. They then tied the M/V PSARA to the dock. The forward spring lines were fixed to a quick release ("pelican") hook on the dock. The remaining lines — rear spring, bow, stern, and breast lines — were tied down. Once the lines were attached, the M/V PSARA's crew used onboard winches to tighten the lines without direction or input from the Chevron employees.
The two forward spring lines were secured by Chevron's crew to a single pelican hook on the dock. As a result of the line placement, one of the forward spring lines wrapped around the vessel's hull and hung up on an eyebolt protruding from the hull. Chevron employee Thomas Trask noticed that one of the mooring lines had become snagged on an eyebolt.
Trask motioned to the ship's crew regarding the mooring line and Trask believed the crew members understood the problem. Trask testified that he communicated with the deck officer and pointed to the side of the ship where the line was hooked, and that two people looked over the rail and then conferred with their officer. Trask, along with the other Chevron dock workers, were credible witnesses. Although plaintiff disputes that Trask's communication was effective, there is no evidence to the contrary. The court finds that the ship's crew had notice of the fouled line but failed to take immediate corrective action.
Chevron employees and the ship's crew finished mooring the vessel shortly before 10:00 am. Shortly thereafter, Chevron employee Richard Gissell, who was filling in for the terminal planner on the day of plaintiff's injury, went onboard the vessel to conduct a pretransfer conference. Gissell met with the vessel's chief mate, Chelepos Konstandinos. Gissell did not inform Konstandinos that one of the vessel's mooring lines had become snagged on an eyebolt. Chevron employees and the ship's employees completed and signed a checklist regarding the ship. Both parties checked the box indicating that the ship was moored safely.
Shortly after 2:00 pm, the vessel began offloading her cargo of crude oil. As the oil was transferred from ship to shore, the vessel began to rise in the water and decrease her draft. Generally, as the ship's draft changes, the dock lines must be monitored and adjusted as necessary.
During the course of cargo transfer operations, Chevron employs a dock man, also called the person in charge ("PIC"). On the evening of August 24, 2002, Chevron employee Kurt Boesch assumed the position of dock man on duty.
At approximately 7:45 pm, the crew of the M/V PSARA, at the direction of the ship's captain, Georgios Koutikas, began to attempt to adjust the forward spring line. Captain Koutikas, with the assistance of two crew members, used a hydraulic winch located in the forecastle of the vessel to slacken and then tighten the snagged mooring line in an effort to free it. Chevron did not participate in the captain and crew's efforts at adjusting the line.
At approximately 8:00 pm, the mooring line, which was under considerable tension, suddenly came free and whipped over the top of the ship's handrail and across the deck. The mooring line struck and injured plaintiff, who had walked onto the ship's deck a few minutes earlier.
The day after plaintiff was injured, Boesch helped members of the vessel's crew move one of the vessel's forward spring lines to a different position on the dock. Specifically, Boesch and the crew moved the line to a cleat on the dock that was positioned nearer the front of the vessel. In that position, a shorter length of spring line ran from the vessel to the dock, and the line did not wrap around the vessel's hull in the same manner and it was not caught up on an eyebolt.
B. Legal Standards for a Maritime Negligence Claim
To state a claim for negligence in admiralty, a plaintiff must demonstrate 1) the existence of a duty of care owed by the defendant to the plaintiff; 2) the breach of that duty; 3) a causal connection between the alleged conduct of defendant and the plaintiff's injury; and 4) actual loss, injury or damages suffered by the plaintiff. Pearce v. United States, 261 F.3d 643, 647-48 (6th Cir. 2001). The duty owed plaintiff was the "ordinary negligence duty of reasonable care under the circumstances." Peters v. Titan Navigation Co., 857 F.2d 1342, 1344 (9th Cir. 1988).
C. Proportionate Fault As Between the Psara Defendants and Chevron
Plaintiff contends that the Psara defendants failed to exercise reasonable care under the circumstances by 1) improperly mooring the vessel; 2) inadequately training crew members in proper docking and mooring procedures; 3) not using alternate means to free the forward spring line; 4) attempting to free the forward spring line by turning the hydraulic winch to full torque; 5) not warning plaintiff of the hazard presented by running the ship's winch at full torque to free the line; 6) not insisting that the spring line be moved to the forward cleat on the dock; 7) not employing competent safety personnel to oversee the docking procedures; 8) inadequately instructing plaintiff and other crew members in the recognition of hazards associated with the freeing of mooring lines; and 9) allowing plaintiff to walk in the area where crew members were working to free the snagged mooring line.
Plaintiff contends that Chevron failed to exercise reasonable care under the circumstances by 1) inadequately training its employees in proper docking and mooring procedures; 2) not attaching the forward spring line to the forward cleat on the dock; 3) not taking corrective action with regard to the snagged mooring line; 4) not warning the vessel's crew about the snagged mooring line; 5) not inspecting the mooring lines while the vessel's cargo was being transferred to shore; 6) not ensuring that the vessel's crew did not engage in unsafe practices while the vessel was moored at Chevron's dock; 7) not monitoring for unsafe conditions during the transfer process; 8) not warning plaintiff; and 9) not complying with company safety policies designed to protect the public.
Although plaintiff settled his claims with the Psara defendants prior to trial, I must make at least limited findings as to the Psara defendants' liability in order to determine each party's proportionate share of the fault. Based on the materials submitted by the parties and the court's own research, there is no admiralty law precedent addressing the precise issue of the ship/shore interface at an oil terminal, as presented by this case. I have based my decisions regarding liability on the testimony and evidence regarding the customs and practices in the industry as well as other evidence that goes to what would have been the exercise of reasonable care under the circumstances.
1. The Psara Defendants' Negligence
Both plaintiff's and Chevron's evidence supports a finding that the shipping defendants are liable for plaintiff's injuries. The testimony ranged from an opinion by plaintiff's expert Captain Mitchell Stoller that the PSARA captain exhibited poor seamanship and that his attempt to free the line in the manner he did created an extremely dangerous situation, to testimony from Chevron's expert Henry Woods, who found that the efforts to dislodge the line by the captain were "bizarre." There is no testimony in the record that suggests the method attempted by Captain Koutikas to free the line was acceptable. I conclude the Psara defendants were negligent in attempting to free the line in the manner chosen.
I also conclude from the evidence and testimony that the ship was negligent in several other ways, including securing the vessel so that the spring line led across the hull, failing to adequately monitor the lines after the initial docking, and failing to insure that non-essential personnel were kept a safe distance away from a working mooring line under strain.
2. Chevron's Negligence
It is clear from the testimony of both sides' witnesses that the mooring operation is the responsibility of the vessel but that it is a cooperative effort that requires coordination between the ship and the dock. The Chevron employees who are experienced in these mooring operations testified that they rely upon the ship to direct placement of the lines. This is done in a very informal way, generally through gesturing and acquiescence. It is clear that if the ship wants or prefers a different mooring configuration, it has the authority to direct it. In this case, if the ship was concerned about the effect on the line of placing it on the pelican hook, the ship could have so indicated and directed its placement on the forward cleat. However, it is also clear that the Chevron dock workers were leading the activities on the dock, specifically the initial placement of the spring lines. Other unrebutted evidence supports the conclusion that many of the ship/shore operations are joint efforts between the ship and the dock. Chevron had the authority in general and in this case to shut down the unloading operation when a hazard was created.
The testimony was somewhat unclear as to whether any contact between the mooring line and the ship's hull is per se unsafe, but I conclude that in this case, the ship was moored unsafely. Although the evidence suggests that generally the ship's crew decides where the lines lead from, I do believe Chevron incurred some liability. Chevron dock members were aware or should have been aware that the spring lead was a long lead and that attaching it to the pelican hook would result in the line making contact with the hull. Chevron employees should have exercised judgment as to whether a specific hook was appropriate, given the length and the source of the spring line. They were almost immediately aware that this contact had resulted in the line hanging up on the eyebolt. Some consideration should have been given to a different configuration, even if placement on the pelican hook at issue was the dock crew's standard practice. It was Chevron employees, not the ship's employees, who were most familiar with the spacing of the hooks on the dock.
I acknowledge Chevron's position that it was reasonable to assume that the problem could be resolved by advising the ship's crew. As noted above, I find that Chevron employee Trask communicated to the crew about the line being fouled on the eyebolt. However, I also conclude that Chevron should have made certain that steps were taken to remedy the problem. When a ship is moored at an oil terminal for unloading hazardous cargo, I conclude that the terminal has an ongoing duty to monitor operations. In this case, reasonable care would have included periodic visual checks of the mooring lines, particularly when employees were earlier aware of a potential problem. While Trask testified that he believed the ship's crew had knowledge of the problem and Gissell testified that he believed Trask had given the crew notice, Chevron employees should not have signed off on the checklist until they were certain that the problem with the mooring line was corrected. At the least, Chevron employees should have periodically checked the line and brought it to the attention of the ship's crew if it had not been corrected. Additionally, the possibility of a problem with the mooring line should have been communicated from Gissell to Boesch when Boesch came on duty.
In summary, I conclude that the ship maintained the primary responsibility to insure that the initial mooring is done in a seaworthy manner and the primary responsibility to remedy any problems about which the ship had or should have had knowledge. Captain Koutikas became aware of the fouled line and had the opportunity and means to remedy it in a safer manner. Based on the unrebutted testimony of Captain Stoller and Chevron's witness Captain Walt Eaton, Captain Koutikas acted negligently in the method he chose to free the line. There was substantial and continuing negligence on the part of the ship, but there was also negligence on Chevron's part — in the initial tie-up of the ship, in failing to monitor the lines, in failing to followup on its initial notice to the crew, and in signing-off on the safe mooring of the ship before cargo transfer operations began. I conclude that this was a significantly lesser degree of negligence. Fault is allocated 25% to Chevron and 75% to the Psara defendants.
3. Causation
Chevron argues that even if the court determines it was negligent, its agents' actions were not the proximate cause of plaintiff's injuries. Chevron argues that plaintiff has not established that Chevron's conduct is so closely connected with plaintiff's injuries as to justify the imposition of legal liability. Chevron also argues that it cannot be liable to plaintiff because a superseding cause existed which cut off Chevron's potential liability to plaintiff. To this end, Chevron contends that the actions of the captain and the crew were extraordinarily reckless and not foreseeable, and were therefore an intervening and superseding cause.
Chevron primarily relies on the Supreme Court's ruling inExxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830 (1996). In that case, Exxon, the owner of an oil tanker, brought an action against the owner and operator of a Single Point Mooring System and its manufacturer, alleging negligence and breach of warranty. The case arose out of an accident in which the tanker broke free from the mooring system and ran aground several hours later. The lower courts ruled against Exxon, concluding that the tanker's captain was the superseding and sole proximate cause of the tanker's grounding.
On review, the Court held that the requirement of proximate causation and the related superseding cause doctrine apply in admiralty regardless of the Court's prior adoption of the comparative fault principle. Exxon, 517 U.S. at 832. The Court also addressed the lower courts' findings regarding proximate causation as applied to the case before it. The Court engaged in a very limited review on that issue, noting that it was only determining whether Exxon had made an "obvious and exceptional showing of error" that would justify reversal of the lower courts' conclusions. Id. at 841. "Without necessarily ratifying the application of proximate causation principles by the courts below to the particular facts here, we decline to reconsider their conclusion." Id.
Although the Court's analysis on this issue was clearly quite limited, its recitation of several facts provides insight into why the Court upheld the lower courts' rulings and why this case is distinguishable. The lower courts in the Exxon case found that within an hour after the breakout, the tanker had successfully avoided the peril resulting from the breakout and had reached a safe position. After this point, the tanker's captain took a number of actions, some of which were found to be grossly and extraordinarily negligent. Most significant was his failure to have someone plot the ship's position. The captain's failure to plot fixes of the ship's position "was entirely independent of the fact of the breakout." Id. at 834, 841. The captain made a final turn toward the shore without realizing that the ship was headed for a reef, and the ship ran aground. The Court noted the district court's finding that the captain's decision to make the final turn was not foreseeable. Id. at 834.
In this case, I cannot conclude that the ship's actions were the sole proximate cause of plaintiff's injuries. Although I have found that the captain in this case was negligent in the manner he chose to free the fouled line, this was not entirely independent of Chevron's actions in creating the hazard and other omissions, nor was it entirely unforeseeable "[P]roximate cause is a means of cutting off liability for consequences that are so far removed from the conduct at issue that there is no justification for imposing liability." Christensen v. Georgia-Pacific Corp., 279 F.3d 807, 815 (9th Cir. 2002). Actions and inactions by both the dock and the ship led to plaintiff's injury, and while the ship's negligence was far greater, I cannot say that Chevron's actions and inactions were too far removed from the accident to justify imposing liability.
I also reject Chevron's arguments related to a failure of proof of causation because of a lack of evidence as to the condition of the line for several hours.
D. Contributory Negligence
There is no evidence of contributory negligence on the part of plaintiff. Dimitrios Baizos, Chief Engineer of the PSARA testified that crewmen come on deck when they are off duty. He stated that it is not common to wear a hard hat in those circumstances. He and other crew members were aware of plaintiff's presence on the deck before commencement of the mooring operation. Plaintiff's expert, Captain Stoller, states in his expert report that it is not unusual for ship's personnel to walk across the deck, that the deck supervisor must ensure that personnel are aware of any on-going operations and that they stay clear. There is no evidence that plaintiff violated any regulations or warnings. I find no percentage of fault attributable to plaintiff.
II. Findings and Conclusions Pertaining to Plaintiff's Damages
A. Nature and Extent of Plaintiff's Injuries
Plaintiff is permanently brain injured and will require care for the remainder of his life. Given the severity of the injuries described by plaintiff's expert Dr. Jefferson Chen, the length of plaintiff's coma, and his initial condition, his partial recovery has been remarkable and is a tribute to the efforts of his family and his medical providers. However, plaintiff has significant problems which affect his ability to care for himself and cope with the activities of daily living. I accept Dr. Deborah Doherty and Dr. Xanthi Petrounia's assessments of plaintiff's present condition and his limitations. For example, plaintiff is able to communicate with words but is limited in his voice power and has very poor articulation. Plaintiff has memory deficits. Plaintiff can raise himself from reclining to sitting but needs help from sitting to standing. He can walk with assistance. He is able to eat by himself if a plate of food is prepared for him and is placed in front of him. He has trouble with tasks such as brushing his teeth and putting his shirt on the correct way. His vision is impaired.
Plaintiff is functioning in the extremely low range of intellectual ability. Plaintiff's capacity for comprehension and more complex tasks is quite compromised. Plaintiff does not appear to have the cognitive capacity to fully appreciate his injury or the deficits he has sustained.
Plaintiff's life expectancy will likely be ten percent shorter than average as a result of his injuries. Plaintiff therefore has a remaining life expectancy of 49 years, to age 70.
B. Past Medical Expenses
The Psara defendants paid the costs of plaintiff's pretrial medical expenses. Plaintiff and Chevron stipulate that plaintiff's pretrial medical expenses in the amount of $1,607,960 were medically necessary, reasonable, and necessarily incurred as a result of plaintiff's injuries. The parties disagree as to whether this amount should be considered damages which plaintiff can recover in this lawsuit.
Chevron argues there is no testimony or documentary evidence indicating that past medical expenses were ever expenses that plaintiff was obligated to pay. Without proof that past medical bills were actual damages to plaintiff, according to Chevron, plaintiff is not entitled to obtain "double recovery" on those expenses from Chevron. Chevron argues that to the extent that any percentage of the fault is allocated to Chevron, the Psara defendants would potentially have a claim for a percentage of the past medical bills they paid, but if such a claim for contribution existed, it was the Psara defendants' claim, not plaintiff's claim. Chevron contends that any claim the Psara defendants may have had against Chevron was extinguished before trial, when Chevron and the Psara defendants settled their cross-claims and those claims were dismissed from the case.
Chevron primarily relies on Franklin Supply Co. v. Tolman, 454 F.2d 1059 (9th Cir. 1972). In Franklin Supply, the court considered whether the plaintiff could include in its total damages claim $200,000 it had been paid by another tortfeasor. The court noted that under the collateral source rule compensation received by an injured party from an insurance company or other source that is not a wrongdoer will not diminish the damages from another wrongdoer. But the court found that "[i]n the present action the additional compensation paid and received was not from a `collateral source' but from one charged with causing the same injury which [the defendant] is being charged." Id. at 1074.
Plaintiff argues that Chevron's position is at odds with well-established principles of admiralty law set forth in U.S. v. Reliable Transfer Co., 421 U.S. 397 (1975) and McDermott, Inc. v. Amclyde and River Don Castings, Ltd., 511 U.S. 202 (1994). In Reliable Transfer, the Court held that in admiralty cases, liability for damages will be allocated in proportion to the relative fault of each party. Reliable Transfer, 421 U.S. at 411. In McDermott, the Court was called upon to determine "how a settlement with less than all of the defendants in an admiralty case should affect the liability of nonsettling defendants." McDermott, 511 U.S. at 207. The liability of nonsettling defendants is calculated using a proportionate share approach whereby nonsettling defendants pay that portion of the verdict for which they are adjudicated responsible rather than being given a credit for the amount of the settlement and then bearing the responsibility of the remainder. Id. at 204. The Court stressed several times that consistency with the proportionate fault rule of Reliable Transfer was important to its decision. Id. at 211-13, 217.
Chevron characterizes the past medical expenses as double recovery, but plaintiff is not asking the court to enter a judgment against Chevron for the $1.6 million dollars in past medical expenses. Rather, plaintiff is asking that the $1.6 million be included in the court's calculation of the total damages on which Chevron's proportionate share will be based. Chevron maintains that it is simply trying to ensure that it is held liable only for plaintiff's actual damages. However, Chevron in effect is seeking a settlement credit, which seems contrary toMcDermott and Reliable Transfer. Chevron's argument appears to assume that the medical expenses at issue would constitute actual damages if the Psara defendants had refused to pay them. I find it difficult to rule in Chevron's favor based on this distinction — whether the settling defendant actually paid the expenses. I will follow the admiralty cases of Reliable Transfer and McDermott rather than the non-admiralty cases cited by Chevron. I find that Chevron's approach cannot be squared with the principles of admiralty law articulated in these cases.
I conclude that plaintiff's damages include $1,607,960 for pretrial medical expenses.
C. Lost Earning Capacity
Plaintiff will never be able to work again in the maritime industry or at any other type of gainful employment. Both parties calculated loss of future earnings on the assumption that plaintiff would have completed the career path for retirement as a maritime engineer. The major difference between the two calculations is plaintiff's expert's assumption that plaintiff would work year round, either at sea or in a port.
Plaintiff's witness Panagiotis Raptis testified regarding the education, training and sea time which would have been required for plaintiff to become a chief engineer. He testified that individuals following that path typically become chief engineers at age 35 and typically retire at age 55 to 60. They are at sea 7 to 8 months per year. He testified that "usually" they rest for 2 to 3 months but "sometimes" they work. If an individual decides to work in port, a wage of 4,000 euros per month is possible. He testified that the potential range of salaries for chief engineers runs from 7,000 — 12,000 euros per month. Plaintiff's uncle, Dimitrios Baizos, Chief Engineer on the M/V PSARA, testified regarding the salaries of chief engineers on various types of vessels. However, plaintiff offered no testimony from which the court can find that it was likely that plaintiff would work while in port and the court is reluctant to rely on the possibility of that occurring. The testimony supports a finding that the average chief engineer would be at sea for 7-8 months a year and would gross an average monthly salary of 9,500 euros.
I conclude that plaintiff's lost earnings and lost pension incurred from the date of trial through the end of his anticipated life expectancy, discounted to present value, total $1,800,633.
D. Future Medical Expenses and Life Care for Plaintiff
The court heard a great deal of testimony and received substantial evidence from both sides relating to proposed life care plans for plaintiff. I will briefly discuss my view of the various life care plans, certain specific areas of disagreement regarding costs, and then the basis for my conclusions regarding the appropriate damages figure for this category.
Plaintiff presented the testimony of Dr. David T. Rollins who specializes in the preparation of life care plans. Dr. Rollins received some input from a Greek doctor, Dr. Xanthi Petrounia, regarding the relative cost of procuring medical care, goods and services in Sparta and Athens, Greece. However, Dr. Petrounia was not familiar with all of the costs of the various items set forth in Dr. Rollins' life care plan. I find it difficult to fully credit the testimony regarding the cost of care in Greece, given other testimony on the relative cost of living and medical treatment in Greece as compared to the United States and other European nations. I also note that this life care plan, while subsequently amended with input from Dr. Petrounia, was prepared in September of 2003 and may not adequately take into consideration the improvements noted since that date. Dr. Rollins' life care plan also goes beyond what is necessary and reasonable for plaintiff's care.
Chevron relies on a life care plan presented by Michele Nielsen, a medical case management and vocational rehabilitation specialist and life care planner. Nielsen's testimony was somewhat helpful, but I find that her life care plan does not provide funds for adequate care in several respects, particularly the cost of home care with a live-in care provider and family assistance.
Chevron also relies on the testimony of Dr. Joseph T. Capell. I am impressed by Dr. Capell's evaluation and recommendations for plaintiff's future care. Plaintiff's counsel even noted Dr. Capell's experience and knowledge and asked the court to rely upon Dr. Capell's testimony in a number of respects. Dr. Capell's plan is premised on the belief that plaintiff should be cared for, if possible, in his family home. It is clear that his family members love and care for him and they would benefit by being together. Their home and the village in which they live are particularly suited for family residential care. This obviously will require an adequate monetary award for care in the home, compensation to the family for their assistance, structural changes to the home, and such equipment as necessary to maintain the best possible lifestyle for plaintiff. Without attempting to list all of the costs and the specific amounts required for care, I note some of the recommendations of Dr. Capell, with which I concur. These include:
1) Medical management for the rest of plaintiff's life by a neurologist, a psychiatrist and two additional medical visits (a total of six medical visits per year).
2) That plaintiff continues in his current program until August of 2004, at which time he returns to his home.
3) Approximately 48 days per year of treatment over the next three years until 2007 at the present rehabilitation facility.
4) After 2007, periodic physical therapy evaluations and comprehensive occupational evaluations. These semiannual evaluations would be associated with the semiannual physical medicine and rehabilitation appointment.
5) A live-in attendant. This would be a person competent to care for individuals with traumatic brain injury and who would provide supervision, safety, house keeping, laundry, meal preparation and shopping activities. This would undoubtedly require modification to the home for appropriate sleeping quarters and facilities.
Provisions will have to be made for relief of the live-in attendant, presumably through a combination of family assistance and employment of a part-time attendant as necessary. I believe the family should be compensated for the time which they spend assisting plaintiff in his daily needs.
Overall, I believe that Dr. Capell has set forth an appropriate plan for plaintiff's future care and medical needs based upon the treating physician's evaluation of his medical condition and limitations.
The proposed life care plans contain information regarding the cost of medication, equipment and other medical care and necessities, which the court will include in the overall award for future medical care. I will briefly note a few specific issues with respect to costs.
The only testimony regarding the cost of remodeling the family home is the testimony of Stephanos Vertopoulos. There were no details given and issues were raised regarding the extent of the remodeling. However I will accept this figure, as there is no other evidence in the record. Estimates were also made regarding the cost of a van. I note that plaintiff would have undoubtedly purchased a vehicle for his own transportation and there are differences of opinion as to the necessity of a customized van and the extent of that customization. I will make a small award for the additional cost of the periodic purchase of an appropriate van.
Another important issue is the location and cost of care for plaintiff in the event that residence at home is no longer feasible. Dr. Capell agreed with Nielsen's life care plan in so far as it proposed a residential facility placement beginning in approximately 2026 for the balance of plaintiff's lifetime. It is clear that plaintiff's family and plaintiff's treating physicians do not consider Nielsen's proposed facility at St. Pandeleimon of Sparta to be an appropriate care facility. However, there is little other testimony regarding the cost of a permanent care facility at that stage in plaintiff's life. No one has suggested that plaintiff would require the intensive and extensive care that he is receiving at the rehabilitation facility which provides acute rehabilitation at a cost of approximately 45,000 euros per month. Dr. Panagiotis Mariatos states that the monthly cost for a single room at a luxury hostile for moderately disabled persons in Athens, with supportive physiotherapy and medical care, is in the range of 2,000 — 2,200 euros per month. Given plaintiff's condition, this may not be sufficient. The court has taken this into consideration in reaching a figure that includes care outside the home when that may become necessary.
Each party submitted testimony from an economist who calculated the lump sum present value of the respective life care plans. I have rejected aspects of the proposed life care plans, and find that an appropriate life care plan includes a combination of Dr. Capell's opinions and some of the proposals submitted in Dr. Rollins' plan and Nielsen's plan. Therefore, I have determined the present value of what I find to be the appropriate plan and must now arrive at an after-tax discount rate to apply to the total cost of future care. Surprisingly, there was little reliable testimony presented by either party regarding taxes in Greece upon the income from the award. However, there was testimony that the tax limit is 10% on interest income on Greek government bonds.
I conclude that plaintiff's future medical expenses and care projected from the time of trial through the end of plaintiff's anticipated life expectancy total $5,203,534.
E. Non-Economic Damages
I conclude that plaintiff's non-economic damages, including lost quality of life, pain and suffering, permanent disability and permanent interference with his daily and family life, total $3,000,000.
This amount will not be discounted to present value like the other categories of damages, as requested by Chevron. The court has made an appropriate determination of future noneconomic damages.
III. Summary
Having considered the evidence, having determined plaintiff's damages, and having calculated the present value of those amounts where appropriate, the court makes the following findings:
1) Plaintiff's pretrial medical expenses total $1,607,960, an amount stipulated by the parties;
2) Plaintiff's lost earnings and lost pension total $1,800,633;
3) Plaintiff's future medical expenses and future care total $5,203,534; and
4) Plaintiff's non-economic damages total $3,000,000.
Plaintiff's damages total $11,612,127. The court apportions liability for plaintiff's damages as follows: 75% to the Psara defendants, 25% to Chevron, and 0% to plaintiff. Plaintiff may submit a proposed form of judgment.